Events in parliament and the courts have been dramatic. But for every constitutional reaction there has been an equal and opposite reaction to maintain the balanceby Adam Tomkins / October 4, 2019 / Leave a comment
There is no constitutional crisis in the United Kingdom. There would be had the constitution broken down but, thus far, it is rising to all the challenges Brexit has thrown at it. Amid political crises, and this is certainly one, parts of the system are prone to push harder than normal, but the stresses can be managed as long as other parts push back equally hard—and so it has proved. In this way equilibrium is retained. September’s historic Supreme Court ruling that the prime minister had acted unlawfully in advising the queen to prorogue parliament for five weeks is a case in point.
For 400 years our courts have been laying down the legal limits to prerogative powers such as the power to prorogue. There is nothing new in the proposition that, when it comes to a clash between the ancient powers of the crown and the interests of parliament, the courts will tend to rule in favour of the latter. Since the 17th century it has been the most fundamental principle of our constitution that the government of the day is subject to the will of parliament, and not the other way around. All the 11 justices of the Supreme Court did in the case brought by campaigner Gina Miller and SNP MP Joanna Cherry was to give (admittedly dramatic) effect to this basic principle of our constitutional order.
Which is not to say that nothing of importance was decided in Miller/Cherry. In its decision, the Supreme Court did stretch the doctrine of parliamentary sovereignty further than before; likewise, the justices broke new ground in elevating our tradition of ministerial accountability to parliament from a mere convention to a judicially-enforceable “constitutional principle.” But in both instances the Supreme Court did what common lawyers have been doing since the time of Edward Coke in the early 17th century. They developed the law incrementally, on the basis of past authorities, with a careful eye on the extent to which any novel statements in the case could be used as precedents for future developments in the law.
Overblown claims that the judgment amounted to a judicial incursion into politics are just that—hyperbole. To my mind, it is beyond argument that today’s courts do intervene too freely in political decision-making. But not in this case. When, under instruments…